May 3 2003

Movers liable for losing couple's possessions

Ensure you have enough insurance for the move

Why do people move from one
house to another?

According to comedian George Carlin, a house is just "a place to keep
your stuff while you go out and get more stuff." Sometimes, he says,
"you gotta get a bigger house. Why? No room for your stuff any more."

But it was anything but funny when a Toronto couple hired Kennedy Moving
Systems to move their stuff to a bigger house in north Toronto in
February, 1999.

When Gayle called the movers to arrange the details, she explained that
she wanted the goods kept in secure storage for about two weeks while
she and her husband Stuart renovated their new home.

Greg Peterson, the mover's sales representative, contracted with Gayle
for the goods to be stored in a trailer for two weeks, and Peterson
assured her of the firm's security in order to preserve her confidence.
The agreement was that Kennedy Moving Systems would safeguard the
belongings by parking the trailer in a parking lot, lowering the landing
gear and locking the trailer. There were no fences, no cameras and no
monitoring.

At the time of the move, Gayle signed a contract that limited Kennedy's
liability to 60 cents a pound, or a total of about $7,000. On the
recommendation of their own insurance broker, Gayle and her husband
Stuart obtained their own insurance for $170,200.

On the night of Feb. 10, 1999, Kennedy Moving Systems relocated the
trailer from their lot in Mississauga to the adjacent public roadway so
the lot could be snowplowed. That night, the trailer and all its
contents were stolen. The trailer was later recovered, but it was empty.

Gayle and Stuart were devastated with the loss of all their possessions.
Over the next three weeks, they prepared a detailed 65-page list of
contents and articles of particular value. They included pieces of art,
wedding photographs, antique furniture, needlepoints, carvings, records,
CDs and books. The final replacement value was estimated at $750,000.

Gail and Stuart recovered $170,000 from their own insurers and sued the
movers for their losses. Kennedy defended saying their liability was
limited to 60 cents a pound according to the contract the couple signed
before the move.

In December, 2001, Justice Susan Himel awarded them their damages in an
amount to be determined by a court official known as a Master. She
acknowledged that trailer storage was a term of the contract, but it was
also agreed that Kennedy was to safeguard the couple's belongings by
parking the trailer in a parking lot, removing the landing gear and
locking the trailer. The plaintiffs, the judge ruled, relied on that
when they entered into the agreement.

It was never intended, however, that the trailer would be parked on a
public street and that no surveillance would be provided. The judge
ruled that this amounted to a breach of contract in the circumstances,
and it would be unreasonable to limit the mover's liability to $7,000,
or 60 cents a pound.

The case went to the Court of Appeal in December. In a 2 to 1 split
decision, published last month by the Law Society, the appeal court
essentially upheld the decision of the trial court. (Stuart and Gayle
were denied their business losses resulting from lost-time itemizing and
replacing their possessions.)

Writing for the majority, Justice Jean-Marc Labrosse noted that the
plaintiffs' goods were highly valuable, both in monetary and sentimental
terms, and they took special care to choose a moving company to provide
the security they felt was essential. They were never advised that their
goods would be stored unattended on a public street and never agreed to
that.

The appeal court agreed that the trial judge was correct in striking out
the 60-cent limitation clause in the contract, but in a strong
dissenting opinion, Justice James J. Carthy argued in favour of limiting
damages to $7,000.

In the end, Gayle and Stuart were awarded their damages, interest and
court costs.

If you're due for a move soon, make sure you have enough insurance. Read
the contract with the movers. Take your jewellery, sentimental goods,
computer and photos with you, or keep your eye on them at all times. And
make a detailed list of your possessions before they're stolen or
destroyed, not after.

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.